When Can Police Conduct a Search Without a Warrant?

January 2, 2014 in Freedom of Information, Frequently Asked Questions When Can Police Conduct a Search Without a Warrant?

In a previous post, we discussed search warrants in detail. A search warrant is a legal document that gives law enforcement officers judicially sanctioned authority to conduct a search for evidence of a crime. In general, police need to have a search warrant in order to conduct a search. This requirement is based on the Fourth Amendment to the United States Constitution. But there are many exceptions to this requirement. This post will discuss some of the circumstances in which police may be able to conduct a search without a warrant.

Search Incident to Lawful Arrest

If someone is lawfully arrested, the police may search his or her person and any area surrounding that person that is within his “grab and reach” without a warrant. This exception to the warrant requirement is known as “search incident to lawful arrest.” The rationale to this exception is that a warrantless search is permissible after an arrest as a security measure to protect police officers and others from weapons and other potentially harmful items. See Chimel v. California, 395 U.S. 752 (1969).

Consent

A police officer may conduct a warrantless search if consent to the search is given by a person reasonably believed by an officer to have authority to give such consent. If you consent to a search of your vehicle, for example, police do not need a warrant to conduct the search. Also, if a suspect’s significant other gives police officers a key to the suspect’s apartment so that the officers can conduct a search, the warrantless search will not violate the suspect’s Fourth Amendment rights if the police officers reasonably believed he or she lived there (even if the significant in fact does not). See Illinois v. Rodriguez, 497 U.S. 177 (1990).

Plain View

Police do not need a warrant to seize evidence and contraband that is plainly visible during a lawful observation. In order for this exception to the warrant requirement to apply, the police officer must be lawfully present at the place where the evidence is in plain view, the officer must have a lawful right of access to the object to be seized, and the incriminating nature of the object must be immediately apparent. See Arizona v. Hicks, 480 U.S. 321 (1987).

For example, an officer cannot illegally enter a person’s home and then use the plain view exception to the warrant requirement to seize evidence of a crime that is plainly visible. But if the officer enters the home to serve a search warrant that is lawfully issued for a search for marijuana plants, the officer could then seize illegal weapons that are in his or her plain sight.

Searches of Automobiles and Vehicles

If police believe that a vehicle contains evidence of a crime, the instrumentalities of crime, contraband, or the fruits of a crime, they do not need a warrant to conduct a search of that vehicle. The rationale for this exception to the warrant requirement is that cars and other motor vehicles are highly mobile and may allow suspects to escape with evidence of a crime before the officer has time to obtain a warrant. This exception applies to vehicles other than cars, including motorcycles and boats. See Carroll v. United States, 267 U.S. 132 (1925).

While this exception to the warrant requirement seems very broad, police are only allowed to search areas of a vehicle that might contain evidence of the type suspected to be present. For example, if police suspect that the occupant of a van is smuggling people across the boarder, they cannot justify a search of the glove compartment on this basis. However, if they were searching for drugs, they would be allowed to search the glove compartment.

Emergencies and Hot Pursuit

Police can, without a warrant, seize evidence that can be easily moved, destroyed, or otherwise made to disappear before a warrant can be issued. In addition, if police are pursuing a suspect who then enters private property during the pursuit, they do not need a search warrant to enter that property and continue the pursuit. This is true even if the suspect has no connection to the property owner. See Warden v. Hayden, 387 U.S. 294 (1967)

Stop-and-Frisk Searches

We discussed stop-and-frisk searches in detail in a previous post. This is considered by some to be another exception to the search warrant requirement. In a stop-and-frisk search, police can approach and stop a suspect so long as they have reasonable suspicion that that person has engaged or is engaging in a criminal act. The police can then conduct a limited pat-down of that person for weapons and contraband. See Terry v. Ohio, 392 U.S. 1 (1968).

The constitutionality of stop-and-frisk practices by the New York City Police Department have been challenged in a lawsuit, which we have discussed here and here

Other Exceptions

There are other exceptions to the warrant requirement and certain situations in which the standards for when a search can be conducted are relaxed. These include searches at the borders of the United States, searches in public schools conducted by school administrators, and searches that involve foreign intelligence surveillance.

A Criminal Defense Attorney Can Help

If you were subject to a search by police officers with or without a warrant, contact an experienced criminal defense attorney right away. A criminal defense attorney can help protect your constitutional rights and defend against criminal charges that result from a search.

For a free and confidential consultation with a New York criminal defense attorney, call the Law Offices of Adam D. Perlmutter, P.C. at 646-742-9800.

Image Courtesy of Flickr User Brad_T